After the hearing on the future of the Deferred Action of 2012 (DACA) on Tuesday at the Supreme Court, where government lawyers and program advocates presented arguments against and in favor, doubts regarding the future of the almost 700,000 dreamers increased, and Also the divisions.
On the one hand, the government insists that Donald Trump, in the use of his presidential authority, canceled the program "based on his belief" and in the face of "serious doubts" that DACA's policy, created by former President Barack Obama "is illegal". And that the decision regarding eliminating the benefit was made using “the discretion” granted to the president by his Presidential Authority (APA), an issue that is not at stake and should not be reviewed by the Judiciary.
The general lawyer of the government, Noel Francisco, argued before the magistrates that the president, in making his decision, did not violate the Presidential Authority, and mentioned two reasons.
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First, he said, "the termination simply ended a previous non-compliance policy whereby the Department (of National Security, DHS) agreed not to enforce the INA (Immigration Law) against hundreds of thousands of illegal aliens" (undocumented).
But that the decision of whether or not the law is enforced is something that in this case falls under the "discretion of the president," Francisco said, and in this case "it is not revisable," unless a statute restrict and nothing in the INA Immigration Law requires DHS or another law enforcement agency to say that you cannot apply the law.
The second argument put forward by Francisco, perhaps less firm than the first and the one that sowed doubts, was whether the order as a result of the president's discretion was “reasonable” because he ended an “default” policy, said the attorney general, in A reference that DACA prevented DHS from doing its job by not proceeding with the deportation of undocumented immigrants.
But, in addition, the government argued that DACA was a temporary temporary measure that "could be rescinded at any time."
Confusing debate
Although Francisco's approach constitutes the basis of the allegation by the government, the main argument put forward by lawyers defending DACA is based on the opinions issued by the lower courts, that the cancellation of the program was an “arbitrary and capricious” measure ”By Trump.
One of the first questions that arises then is whether the Supreme Court will review the text of the cancellation of the program or if the president owns or not to use his presidential authority to, based on his discretion, proceed to cancel a benefit that It was created based on the use of the same authority available to the Executive.
"The debate so far is confusing," says Lilia Velásquez, an immigration lawyer and associate professor at the law school at the University of California, in San Diego. "The lawyers of both parties cited many arguments, but the main one is to determine the jurisdiction of the court, if the judiciary has the right to review the cancellation of DACA, ordered by the president in use of his discretion under his presidential authority."
Velasquez says that when this was discussed during the hearing, there was talk of "trust interests," if dreamers benefiting from the program "depend" on their status to exercise those rights. "And that, because of those important rights, the court may or may not review the president's decision."
And not only "because of the great interests they have" (the dreamers), he adds. "The interests of the dozens of organizations" benefited around them, labor unions, educational associations, etc. were also mentioned in the audience. There is talk not only of the benefits of dreamers, but of the benefits that the country receives thanks to the contribution of these young people protected by DACA. ”
Fair or unfair?
The debate presented before the Supreme Court seems to lead the Supreme Court to navigate between two alternatives. The first, if the president's decision was fair or unfair; the second, whether it was legal or not. And in both cases the ruling will set a determining legal precedent that will mark the future of immigration policy.
“On the one hand, at the hearing it was said that DACA was temporary, that it had to be finished and it was only for two years. But now they are saying that this goes beyond executive authority, that the president must look beyond his executive capacity and cannot leave the dreamers in the open, which he must see for the welfare of them and of all the associations that They depend on their work. That their interests must be taken into account before making a decision. That gives me a little hope, ”says Velasquez.
“The federal government created interests in dreamers, they trusted those interests and a dependency on status and right to work was generated. The fair thing is for the court to hear the case and take these arguments into consideration, ”he says.
After a pause, he reflects and says: “I do not want to be optimistic, but I hope that the decision is adjusted, not only attached to legal issues, but also taking into account social aspects. Dreamers depend on the ruling and the country needs them. ”
What will the court review
The scenarios drawn during the audience are a reflection of the division that exists in the country in terms of immigration. And at the end of the day, the Supreme Court is expected to resolve the legality of the use of the president's powers, which has to do with the Administrative Procedure Law, to end a program that was created by his predecessor in the exercise of That same executive capacity.
"There are actually two questions in this debate," says Phil Agusti, a constitutional lawyer who practices in Washington DC. “The first is whether the judicial branch can review President Trump's decision. The second, which also has to do with the Administrative Procedure Law, is whether the decision to eliminate DACA was legal or not. ”
From the first question, Agusti points out that the government's arguments to defend the independence of powers are firm, and it is unlikely that Supreme Court judges are inclined to review and / or question the use of executive power by the president to cancel a program that was activated by the same route and it was a temporary benefit.
Doubt surrounds the second argument, but it is just that, a certain uncertainty that can influence the final decision, but will not become a decisive factor. This is the reason that former Attorney General Jeff Sessions argued on September 5, 2017, when he canceled DACA. "He said the government thought that, given certain decisions taken by the Supreme Court, that this policy (DACA) was illegal," Agusti said.
“That is, instead of thinking that this was a bad idea from a political point of view, the government said it thought that the policy decided by Obama, in use of his discretion, was illegal. That opened the door to demand Trump's decision in the lower courts, ”he said.
Four months after the cancellation, a San Francisco court determined that the cancellation of DACA was a “capricious and arbitrary” decision and ordered that it be reinstated as it was on September 4, 2017, except for dreamers that were not previously known. They had registered.
“The government says that, assuming that the Court reviews the point, we (the Executive) have discretion as to who we are going to prosecute, and it was reasonable for the government to decide at that time that policy (DACA) was illegal and we will not continue with her, ”he says.
Unlikely
The government's second argument is not firm, but that does not mean that the Court dismisses it and leaves it aside. Because if he does, he would be questioning the president's ability to use his executive power at his discretion. That's why worries.
In the event that the magistrates of the Court support the government's second argument, that the cancellation of DACA is not an “arbitrary and capricious” decision as the lower courts have ruled, because the president ordered it in use of his executive capacity , the Trump administration would get a key victory in an election year.
"They are not really arguing that they try to avoid the discussion as to whether this is not legal, they are based on executive capacity, on the power of the president," says Agusti. "So, in this case, it is not really known what the Court will decide."
He adds that "taking into account the arguments presented by the government, they turn the legal debate into a case between an issue that has to do with the Administrative Procedure Law and in trying to determine the limits of the power of the executive branch." In this scenario, the Achilles heel is DACA and the almost 700,000 dreamers covered by the program.
Uncertain future
The future of DACA is uncertain. Agusti warns that, although the government's second argument is not firm, the judges evidenced, with their questions, that there is a clear 4-4 division and it will be the vote of President John Roberts who decides the future of the program.
Among the possible decisions, there is one that Agusti calls Solomon and that may be included in the list of probabilities. That the Court does not dispute the executive capacity of the president, that he return the case to the lower courts so that in turn they ask the Executive to explain the reasons why he has decided to end DACA, and that the Executive accept rewrite the term of the program in use of the discretion granted by the APA.
"Let the magistrates say that the original reasoning was inconsistent and send them again so that the order is written with a different, prettier reason," he says after a pause.
“But I don't think we will have a final result soon. This will be resolved in 2020. If the president wins, that's it. It all depends on whether the arguments aired on Tuesday are sufficient for the magistrates. If they are not, they are also likely to return the matter to the Department of Justice. But I don't think so, I don't think the president changes the reason, I can't imagine him doing it. And if the case were to occur and the termination changed, then we would start another series of lawsuits in the courts, ”he said.
Agusti also said that if the Trump administration had rescinded DACA in a good way, “it would not have opened the doors of the lower courts to the defenders of the program. That was his main mistake. ”
The only sure thing, he ventured, "is that the ruling will include many opinions" due to the importance of the issue, he concluded.
DACA protects about 700,000 youths from deportation who entered the United States before their 16th birthday and are known as dreamers.
“This is my house”: the messages to defend DACA in front of the Supreme Court (photos)
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